Employer Speech, Union Representation Elections, and the First Amendment

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by  Alan Story

Berkeley Journal of Employment & Labor Law
Volume 16|Issue 2 Article 2
September 1995
Employer Speech, Union Representation Elections,
and the First Amendment
Alan Story
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Recommended Citation
Alan Story,Employer Speech, Union Representation Elections, and the First Amendment, 16 BerkeleyJ. Emp. & Lab. L. 356 (1995).
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Employer Speech, Union
Representation Elections, and the
First Amendment
Alan Storyt
In the 1940s, non-coercive employer interventions during union repre-
sentation election campaigns were accorded First Amendment protection,
IN DICTUM, by the Supreme Court and statutory protection by one of the
Taft-Hartley amendments to the National Labor Relations Act (NLRA).
Such protections, which allowed the $100 million-a-year union avoidancel
union busting industry to flourish, have spawned a seldom-challenged doc-
trinalc ategory within laborl aw: employerf ree speech. Alan Story critically
reappraises the legal, political, and economic assumptions infusing this
doctrinalf ramework; he argues that employer speech is a contested cate-
gory of speech.
The analysis begins with a revisionist history of the employer speech
doctrine during the formative 1935-1947 period and, after reviewing a line
of Supreme Court cases, concludes that the doctrine rests on a fragile theo-
reticalf oundation off alse analogies, significant contradictions,a nd unex-
plained silences. This history opens into an examination of employer speech
as a First Amendment question which argues that the sole stated policy
rationalef or employer speech, creating a marketplace of ideas, does not
justify constitutionalp rotection because the workplace does not function as
a marketplace of ideas. Nor does this metaphoricalr ationalep rovide a co-
herent explanation of how the National Labor Relations Board (NLRB) ac-
tually decides employer speech cases; the essential adjudicative baselines
are the upholding of employer private property rights and maintaining
workplace discipline. Employer speech is a form of corporate commercial
speech and, as such, should be denied constitutionalp rotection.
The next section, entitled "Employer Speech and Coercion," suggests
that, although section 8(c) of the NLRA forbids employers from delivering
coercive speech, the NLRB overlooks and/or sanctions many employer in-
t Lecturer, University of Hull Law School, Hull, U.K.; LL.M., 1994, Cornell Law School;
LL.B., 1993, Osgoode Hall Law School, York University, Toronto, Canada. Sections of this article were
delivered at the Critical Legal Conference, "Legal Identities/Global Cultures," held at the University of
Warwick Law School, Coventry, U.K., Sept. 9-11, 1994. The author wishes to thank Professors Kathe-
rine Stone, Steven Shiffrin, Stewart Schwab, Edwin Baker, James Atleson, and Risa Lieberwitz for their
comments and criticisms of earlier drafts and sections of this article, and the editors of the Berkeley
Journal of Employment and Labor Law for their assistance in getting this article into print. Special
thanks to Harry Glasbeek and Ann Diego.
Q Berkeley Journal of Employment and Labor Law, Volume 16, No. 2, 1995.
1995] EMPLOYER FREE SPEECH
terventions which are, in fact, coercive. This significantp roblematic stems
from a positivist and "rational"a pproach to how speech works, from theo-
rizing the employment relationship itself as a voluntary relation, andf rom
detaching the speaker and the hierarchialw orkplace forum from the con-
tent of employer communications. This section concludes that: a) speeches
to captive employee audiences are undeserving offree speech protection, b)
the doctrine's "threat" vs. "prediction" distinction is a largelyf ictive dis-
tinction, c) permitting "third-party" coercive speech allows the employer to
do indirectly what it is forbidden from doing directly.
If representatione lections are reconceptualizeda s analogous to polit-
ical elections and the employer is viewed as a party in such elections, many
of the above conflicts between employer speech and the First Amendment
are overcome and coerciveness is diminished.D erek Bok's influential 1964
article, THE REGULATION OF CAMPAIGN TACTICS IN REPRESENTATION ELEC-
TIONS UNDER THE NATIONAL LABOR RELATIONS ACT, exemplifies such an
industrialp luralisto rientation.A rguing against such a reconceptualization,
Story explores how the critique of industrialp luralist ideology, which has,
to date, centered on the role of arbitration and collective bargaining, is
equally applicablet o the representatione lection process itself and why plu-
ralist notions such as an equal balance of power between the union and
employer are contestablef or the period both after and before certification.
Employer speech has unquestionably become accepted as a natural-
ized form of speech in the United States. However, employer speech is not
an abstract matter of expressive freedom and, instead, involves a power
struggle between different workplace actors. Within the employment con-
text, the abstract "right" of free speech becomes the right to control and
discipline and provides scant utility to its supposed beneficiaries, voting
employees. Just as employers are prohibitedf rom influencing employee vot-
ers during political elections without offending the First Amendment, so,
too, should they be prohibitedf rom intervening in representation elections
and undermining the exercise of a state-protected right and collective self-
determination.
I. INTRODUCTION ............................................... 358
II. A REVISED HISTORY OF THE EMPLOYER FREE SPEECH
DOCTRINE, 1935-1947 ...................................... 364
A. The Initial Road: Employer Neutrality and Non-
Interference ........................................... 366
B. Thornhill v. Alabama: The Road to Virginia Electric .... 370
C. The Ambiguous Road of Virginia Electric ............... 373
D. The Road Taken in Thomas v. Collins .................. 376
E. Taft-Hartley and the End of the Road .................. 378
II. EMPLOYER SPEECH AND THE FIRST AMENDMENT ............ 381
A. The Workplace as "A Marketplace of Ideas"............ 382
B. Employer Speech as Corporate Commercial Speech ..... 390
IV. EMPLOYER SPEECH AND COERCION ......................... 405
358 BERKELEY JOURNAL OF EMPLOYMENT & LABOR LAW [Vol. 16:356
A. "Free Choice" and Coercion in the Employment
Relationship ........................................... 406
B. Three Types of Coercive Speech ........................ 414
1. Captive Audience Speeches: Separating the Forum
from the Content ................................... 414
2. The Fictive "Prediction'"v s. "Threat" Distinction ... 422
3. "Third Party" Coercion is Still Coercion ........... 432
V. EMPLOYER SPEECH, INDUSTRIAL PLURALISM, AND
ELECTION ................................................. 436
VI. CONCLUSION .............................................. 455
I
INTRODUCTION
In the spring of 1947, a Republican-controlled Congress was preparing
to make a number of amendments, popularly known as the Taft-Hartley
amendments, to the National Labor Relations Act (NLRA).' Since the
NLRA or Wagner Act-so named after its chief legislative architect, Sena-
tor Robert Wagner of New York-had been enacted 12 years earlier, total
union membership had increased almost fivefold;2 by the middle 1940s,
Congress faced strong pressures from America's corporate elite to enact
statutory changes to the NLRA that would constrain further union growth
and assist in the reassertion of managerial authority.' As part of that legis-
lative response, Ohio Senator Robert Taft, New Jersey Congressman Fred
Hartley, and other pro-business congressional leaders had proposed a "free
speech" amendment that would allow employers much greater freedom to
intervene in union representation elections. Upset by the amendments' im-
plications as well as the general tenor of the Taft-Hartley proposals, Senator
Wagner delivered his criticisms in a March 1947 magazine article.
[T]he phenomenal growth of labor organization [in the late 1930s and
1940s] has taken place without any diminution of the employers' constitu-
tional right to free speech in labor relations. The talk of restoring free
speech to the employer is a polite way of reintroducing employer interfer-
1. Pub. L. No. 74-198, 49 Stat. 449 (1935). The official name of the Taft-Hartley amendments is
the Labor Management Relations Act, Pub. L. No. 80-101, 61 Stat. 136 (1947).
2. When the Wagner Act was passed in 1935, union membership totaled 3,753,300. Between
1935 and 1939, it increased to 6,555,500 and, by 1947, had mushroomed to 14,594,700 and represented
31.8 percent of the non-farm labor force. CHRISTOPHER TOMLINS, THE STATE AND THE UNIONS-LA-
BOR RELATIONS, LAW AND THE ORGANIZED LABOR MovEMENr N AMERICA, 1860-1960, at 148, 252
(1985) (citing LEO TROY, TRADE UNION MEMBERSHIP, 1897-1962 (1965)).
3. Many business leaders believed that a number of the provisions of the Wagner Act and the
rapid growth in unions had unfairly tilted power relations in the unions' favor. Amending the Wagner
Act would "equalize the rights of employers and unions" and "'equalization' involved, in particular,
guaranteeing employers' free speech--that is, the right to issue propaganda during union organizing
drives, representation elections, strikes or indeed on any occasion when unionism could be attacked."
HOWELL HARRIS, THE RIGHT To MANAGE: INDUSTRIAL RELATIONS POLICY OF AMERICAN BustEss IN
THE 1940s 109 (1982).
1995] EMPLOYER FREE SPEECH
ence, economic retaliation, and other insidious means of discouraging union
membership and union activity, thereby greatly diminishing and restricting
the exercise of free speech and free choice by the working men and women
of America. No constitutional principle can support this .. .
Senator Wagner's worries were not misplaced. American employers,
acting on the rights consolidated by passage of the "free speech" amend-
ment to the NLRA, are today deeply implicated in the election process by
which workers choose whether they want union representation. Indeed, the
National Labor Relations Board (NLRB) and commentators refer to em-
ployers as "parties" to representation elections.' Granting employer speech
rights during union elections was a critical catalyst for the resurgence of the
union avoidance/union busting industry, estimated in the mid-1980s as a
$100 million-a-year industry;6 employer speech, though prohibited in most
other industrialized countries,7 has become a vital prop in the intervention
campaigns of U.S. employers. Within labor law doctrine, such employer
interventions have spawned a complex set of rules, presumptions, and
NLRB regulations that, over the last 50 years, have evolved into their own
doctrinal formulation: the "employer speech doctrine."8
4. Robert Wagner, The Wagner Act-A Reappraisal,S IGN (March 1947), reprinted in 93 CONG.
REc. 10,844-45 (1947). As explained in Part II, Senator Wagner's intervention came a little late in the
day. The Taft-Hartley amendment on employer speech essentially codified existing Supreme Court
interpretations of the First Amendment and current NLRB policies.
5. See, e.g., Midland Nat'l Life Ins. Co., 263 N.L.R.B. 127, 132 (1982); Derek Bok, The Regula-
tion of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78
HARv. L. REv. 38, 42 (1964). Unless otherwise specified, the term "election" refers to a union represen-
tation election. Although such elections obviously have a political dimension, the term "political elec-
tion" is used for elections to Congress, to state legislatures, etc. Also, unless otherwise specified, the
term "employer speech" means the speech of an employer or its agent, such as a foreperson, during the
course of a union representation election campaign.
6. The actual size of this industry is unknown, due largely to the noncompliance with and non-
enforcement of Title 11 of the Landrum-Criffin Act which requires employers and labor relations consul-
tants to file detailed reports of activities aimed at preventing unionization. See, e.g., STAFF ON SuB-
COMM. OF LABOR-MANAGEMENT RELATIONS OF THE HOUSE COMM. ON EDUCATION AND LABOR, 98TH
CONG., 2D SESS., THE FOROOTTEN LAw-DiscLOsuRE OF CONSULTANT AND EMPLOYER AcTrIvrrY
UNDER THE LMRDA 1, 17 (Comm. Print 1984); Jules Bernstein, The Evolution of the Use of Manage-
ment Consultants in Labor-Relations:A Labor Perspective, 36 LAB. L.J. 292 (1985). "[A]ccording to
the AFL-CIO, 75 percent of all employers hire consultants today at annual cost of S100,000,000 to guide
employer efforts in seeking to avoid unionization during union organizing campaigns." Id. at 296. Cer-
tainly few dispute that the scope and impact of this service industry on U.S. labor relations has expanded
in the last 20 years. In the mid-1980s, AFL-CIO officials estimated there were over 1000 companies
and 1500 individual operatives involved in the "full time activity of preventing unionization." Oversight
Hearings on H.341-8 Before the Subcomm. on Labor-Management Relations of the House Comm. on
Education and Labor, 96th Cong., 1st Sess. 410 (vol. 1 1979) (Pressures in Today's Workplace: state-
ment of Robert Georgine, President, Building and Construction Trades Dep't, AFL-CIO).
7. "Unique among industrialized democracies, U.S. labor law allows employers actively to op-
pose their employees' decision to unionize." Phil Comstock & Maier Fox, Employer Tactics and Labor
Law Reform, in RESToRING THE PROMISE OF AMERICAN LABOR LAW 90, 90 (Sheldon Friedman eta l.
eds., 1987).
8. It is also called the "free speech" doctrine; however, this article argues that speech in the
workplace is not "free speech" and I concentrate on employer, not labor, speech; therefore, the "em-
ployer speech" doctrine is a more apt description.
360 BERKELEY JOURNAL OF EMPLOYMENT & LABOR LAW [Vol. 16:356
This article is a critical analysis of the legal, theoretical, and practical
bases of this doctrine, how and why these bases conflict with employee
rights to self-organization,9 and an examination of whether the First
Amendment of the Constitution,'0 on which its supporters claim the doc-
trine is based, justifies such minimally-regulated employer interventions.
While other types of speech such as hate speech, pornography, and com-
mercial speech, are intensely debated by contemporary legal scholars, em-
ployer speech receives scant attention-and certainly a minimum of critical
theoretical attention-from either labor or constitutional law commentators.
Leading First Amendment scholars perhaps regard it as outside their field of
expertise." Mainstream labor law scholars consider the employer free
speech an essentially settled question,'2 while "critical" labor law scholars
interested in workplace speech issues have tended to focus on labor speech,
such as picketing.'3 Judicial opinions often deal with the theoretical basis
of employer speech by citation to a single leading case. 4 And although the
Commission on the Future of Worker-Management Relations (The Dunlop
9. "Employees shall have the right to self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid or protection .... 29
U.S.C.A. § 157 (West 1973).
10. "Congress shall make no law... abridging the freedom of speech .... " U.S. CONST. amend.
I.
If. Edwin Baker's wide-ranging HumAN LIBERTY AND FREEDOM OF SPEECH (1989) does not
mention employer speech directly; Cass Sunstein's recent DEMOCRACY AND THE PROBLEM OF FREE
SPEECH 33-34 (1993) gives the topic two paragraphs; Lawrence Tribe's AMERICAN CoNsTrruIoNAL
LAW 796 n.14 (2d. ed. 1988) deals with it in a footnote; and Thomas Emerson's THE SYSTEM OF
FREEDOM OF ExPREsSiON 423-25 covers the issue in one and one-half pages. Steven Shiffrin's article,
The First Amendment and Economic Regulation: Away From a General Theory of the First Amendment,
78 Nw. U. L. REV. 1212, 1241, 1264, 1270-72 (1983) discusses employer and labor speech only briefly.
12. For a sampling of law review articles over four decades which, though differing with one
another on secondary points, do not challenge the essentials of the doctrine, see Robert Koretz, Em-
ployer Free Speech under the Taft-Hartley Act, 6 SYRACUSE L. REV. 82, 82-83 (1955) [hereinafter
Koretz, Taft-Hartley]; Benjamin Aaron, Employer Free Speech: The Search for a Policy, in PuBuC
POLICY AND COLLECTIVE BARGAINING 28, 28-29 (Joseph Shister et al. eds., 1962); Note, Labor Law
Reform: The Regulation of Free Speech and Equal Access in NLRB Representation Elections, 127 U.
PA. L. REV. 755, 755-56 (1979) [hereinafter U. PA. L. REV. Note]; James W. Wimberley, Jr. & Martin
Steckel, NLRB Campaign Laboratory Conditions Doctrine and Free Speech Revised, 32 MERCER L.
REV. 535, 535-36 (1981).
13. See, e.g., the work of Cynthia Estlund, What Do Workers Want: Employee Interests and Free-
dom of Expression Under the National Labor Relations Act, 140 U. PA. L. REV. 921 (1992), and James
Pope, Labor and the Constitution: From Abolition to Deindustrialization, 65 TEX. L. REV. 1071 (1987).
A lengthy 19-page bibliography, Critical Legal Studies and Labor Law (on file with author), does not
contain a single reference to an article devoted to the subject. Craig Becker's recent article, Democracy
in the Workplace: Union Representation Elections and Federal Labor Law, 77 MNN. L. REv. 495
(1993), does overlap, in a few areas, with the terrain of this article, but it is more concerned with the
mechanisms of representation elections, their history as a matter of Board policy, and the issue of indus-
trial democracy, rather than employer speech as a constitutional issue or as a form of coercive
intervention.
14. The most often cited case is NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), which itself
was only concerned with one aspect of the doctrine: the distinction between a "threat" and a
"prediction."
1995] EMPLOYER FREE SPEECH
Commission) did examine barriers to unionization, it sidestepped any criti-
cal engagement with the basics of the employer speech doctrine. 5 Em-
ployer speech has thus become a cabined or discrete type of speech and its
basic presumptions and assumptions remain largely unexamined.
Two principal aims of this article are to break down this rigid compart-
mentalization and to reappraise the assumptions made about the supposedly
"special" nature of employer speech. Analyzing both the labor and consti-
tutional law implications of the issue, this article examines and critiques
what leading NLRB and judicial opinions have said about the essentially
uncontested notion of employer intervention and, often more important,
what they have not said. 6 Rather than a matter of abstract constitutional
principle or expressive freedom in general, I argue that the regulation of
employer speech is "an aspect of a power struggle among social forces with
differing views as to the direction in which society should go."'7 Specifi-
cally, employer speech was a "right" created in the 1940s in an attempt to
reestablish stricter employer control of the workplace, to reassert traditional
employer/employee hierarchies, and to dampen union advances. Fifty years
later, the basic purposes of employer speech remain unchanged. The ab-
stract "right" of free speech becomes, within the particular context of the
workplace and its existing structure of rights and privileges, the right to
control and dominate.'I The detailed doctrinal framework that justifies and
naturalizes such speech both fails to appreciate how speech works to affect
behavior and obscures the nature of power relations in the employer/em-
ployee relationship. Due, in part, to the hypnotic power of the phrase "free
speech"-and here I am paraphrasing Judge Jerome Frank-the old dogma
15. CoMMissioN ON THE FuruRE OF WORKER-MANAGEMENT RELATIONS, REPORT AND RECOM-
MENDATIONS 15-24 (December 1994). The Commission's final report duly noted the "imbalance" in the
ability of labor and employers to present their views and the importance of giving employees an 'un-
coerced choice' in deciding upon union representation. lId at 22. However, it accepted, without dissent,
the received wisdom of the employer speech doctrine: that employers have an unchallenged right to
speak during union representation elections and should have "ample time" to do so, that employees need
to know their employers views and opinions about unionization, and that employers are parties in such
election campaigns. Id. Nor did the Commission ask, for example, whether employer "captive audi-
ence" speeches were not inherently coercive. Id. at 23. Instead, the Commission's main concerns about
representation elections were making campaigns briefer and less antagonistic. Id. at 18-20.
16. "The quest for silences, barriers or closures has an important constructive significance because
it begins to point the direction towards a reconceptualization ... so as to allow what was previously
invisible to become part of the reconstructed theory." Alan Hunt, The Critiqueo f Law: What is 'Criti-
cal' About Critical Legal Theory?, in CRTCAL LEGAL SruDrEs 5, 15 (Peter Fitzpatrick & Alan Hunt
eds., 1987). "[T]he violence of legal thought consists in the arbitrary exclusion of other ways of under-
standing the world, other knowledge, and in the re-definition of violence itself." Gary Peller, The Meta-
physics of American Law, 73 CALmiL. . REv. 1151, 1155 (1985).
17. Thomas Kleven, Free Speech and the Struggle for Power, 9 N.Y.L. ScH. J. Hum. RTs. 315,
315 (1992).
18. "[R]ights do not exist in isolation. Each one fits into a background of rights that can be used to
define the limits of a right drawn into present controversy." Mark Tushnet, An Essay on Rights, 62 TEx.
L. REv. 1363, 1373 (1984).
362 BERKELEY JOURNAL OF EMPLOYMENT & LABOR LAW [Vol. 16:356
of a master's control of his servant and management rights has been given a
good name and its bite has indeed become as bad as its bark.' 9
The argument proceeds as follows: Part II briefly examines the initial
development of the employer speech doctrine between 1935 and 1947, and
particularly how its dual foundation, judicial interpretation of the First
Amendment20 and section 8(c) of the NLRA, was originally laid during this
period. Section 8(c) states:
The expressing of any views, argument or opinion, or the dissemination
thereof, whether in written, printed, graphic, or visual form, shall not consti-
tute or be evidence of an unfair labor practice under any provisions of this
subchapter, if such expression contains no threat of reprisal or force or
promise of benefit.2t
This section challenges the conventional interpretative wisdom about this
critical era, contextualizes some key moments in this history, and concludes
that the employer speech doctrine rests on a shaky and contradictory legal
foundation. The next section, Part HI, analyzes employer speech as a First
Amendment issue. While employer speech has been justified primarily for
its contribution to the "marketplace of ideas" during representation elec-
tions, the power relations and property rights inherent in the workplace un-
dermine its functioning as such a marketplace. Employer speech is a form
of corporate commercial speech and, as such, should be denied constitu-
tional protection. Part IV examines employer speech as coercive speech.
Although section 8(c) is supposed to bar coercive employer speech as a
campaign tool, the employer speech doctrine overlooks and/or permits
many employer interventions which are, in fact, coercive. The Board's em-
piricist orientation to speech regulation is detached from the coercive nature
of the employment relationship and the authoritarian structures of the work-
place. Three specific categories of coercive speech are analyzed: 1) captive
audience speeches, 2) speeches that are said to be predictions rather than
19. Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 983 (2d. Cir. 1942). For the
hypnotic power of words in the context of the First Amendment, see Judge Frank's dissenting opinion in
the well-known commercial advertising case of Chrestensen v. Valentine, 122 F.2d 511, 517 (2d. Cir.
1941) (Frank, J., dissenting), rev'd, 316 U.S. 52 (1942). In arguing against First Amendment protection
for commercial advertising, Judge Frank wrote that "to amplify the constitutional guaranty would be to
'thingify' the words 'free speech' and 'free expression,' and to become forgetful of the vital ideas-'the
defense of liberty' and the functioning of 'the processes of -popular rule' for which -they stand. The
danger of converting words into thought-paralyzing entities is illustrated by the judicial history of the
phrase 'liberty of contract.' "Id. at 525; see also Mark Tushnet's comments on the First Amendment
and another well-known phrase, "due process," that was also used to justify existing property rights and
privilege. "The first amendment has replaced the due process clause as the primary guarantor of the
privileged. Indeed it protects the privileged more perniciously than the due process clause ever did. Even
in its heyday the due process clause stood in the way only of specific legislation designed to reduce the
benefits of privilege. Today, in contrast, the first amendment stands as a general obstruction to all
progressive legislative efforts." Tushnet, supra note 18, at 1387.
20. The leading cases are NLRB v. Virginia Elec. & Power Co., 314 U.S. 469 (1941), and Thomas
v. Collins, 323 U.S. 516 (1945).
21. 29 U.S.C.A. § 158(c) (West 1973).
1995] EMPLOYER FREE SPEECH
threats, 3) speeches implicating "third-party" coercion. If representation
elections are reconceptualized as analogous to political elections and the
employer viewed as a party in that election, many of the above conflicts
between employer speech and the First Amendment are overcome and coer-
civeness is diminished as a problem. This approach has been championed
by industrial pluralists such as Derek Bok.2 Part V argues that the critique
of the ideology of industrial pluralism, which, to date, in the critical labor
law literature has centered on the role of arbitration and collective bargain-
ing,23 is equally applicable to the representation election process itself.
This section develops the critique. The brief final section suggests how the
philosophy and process of representation election could be reconceptualized
in order to provide a better terrain for protection of the employees' right to
self-organization.
An implicit assumption of this article is that, as a practical policy ques-
tion, employer speech matters; that is, pervasive and basically unregulated
employer speech has some effect on individual employee decisions on
whether or not to vote for unionization and has had some effect, cumula-
tively, on the decreasing percentage of American workers that today are
unionized.24 While comment on the ongoing debate about the cause(s) of
union decline is beyond the scope of this article, a brief rejoinder is needed
to an influential 1976 empirical study, the Getman study,25 which con-
cluded that what employers say during an election campaign-whether
making threats of plant closure or other reprisals, misrepresenting facts,
promising benefits, or a variety of illegal practices-seldom influences, let
alone determines, the actual vote.26 Instead, the Getman study suggested
that the voting decisions of eighty percent of the employees sampled could
be predicted from pre-campaign attitudes toward working conditions and
unions." Their conclusion: "we recommend that the Board cease regulat-
ing speech and, for election purposes, nearly all conduct."28 This study has
22. Bok, supra note 5.
23. E.g. Katherine Van Wezel Stone, The Post-War Paradigm in American Labor Law, 90 YALE
L. J. 1509 (1981).
24. In 1991, only twelve percent of the private sector employees were unionized, the lowest level
since the Wagner Act was enacted nearly 60 years ago. See Bureau of Labor Statistics, U.S. Dep 't of
Labor, Union Membership 1991, in COMPENSATION AND WoRucnG CoNrnrroNs 76 (Feb. 1992). By the
year 2000, union density will be less than ten percent unless current trends are reversed. PAUL WEILER,
GovERNiNo a WoRKPLACE-TE FurTnua OF LABOR AND ENPLOYmENT LAW 10 (1990).
25. Juuus G. GEavmt Er AL., UNION REPRESENTATION ELECTIONS: LAW AND REALTY (1976).
This book was based on the study of 31 NLRB-conducted elections in 1972-73 in the Mid-West and
questionnaires returned by about 1300 employees who voted in these elections.
26. Among their conclusions: "[e]mployees are not generally attentive to the campaign," id.at
140, union supporters "interpret the employer's arguments as reasons why they need a union not reasons
why they should vote against the union," id. at 144, and employer "interrogation [of how employees
intended to vote] does not have a great impact on either the employees questioned or other employees,"
id. at 149.
27. Id.at 140.
28. Id.at 159.
364 BERKELEY JOURNAL OF EMPLOYMENT & LABOR LAW [Vol. 16:356
been challenged on various methodological and interpretative grounds,29
and other contemporary studies have concluded that employer interventions
and speech do, indeed, matter. For example, one recent study of 261
NLRB-conducted elections demonstrated a clear correlation between both
the number of captive audience meetings held by an employer and the
number of letters sent to employees and the success or failure of a union
drive.3' An official with the United Food and Commercial Workers Union,
describing its organizing success during the past three and one-half years of
more than 3,600 units involving 280,000 workers, suggests that "in every
case, without exception, workers chose the union when the employer was
neutral."'3 Recent empirical studies based on national comparisons reveal a
similar pattern. 2 It is a reasonable assumption that employers have, for
decades, spent so much time, effort, and money on convincing workers not
to join unions because it is an investment that has brought a return of some
consequence; as in political elections, campaigning does influence voters.
A REVISED HISTORY OF THE EMPLOYER FREE SPEECH
DOCTRINE, 1935-1947
The period between 1935, when the NLRA came into force, and 1947,
when the Act was significantly amended by Taft-Hartley, was a critical one
in the history of the employer speech doctrine. During these years, the es-
29. See, e.g., the articles and summary of such criticisms in ARCHIBALD Cox ET AL., CASES AND
MATERIALS ON L AOR LAW 197-198 (11 th ed. 1991). For example, RicHARD B. FREEMAN & JAMES L.
MEoCOFF, WHAT Do UHiONs Do? (1984) argues that "even modest statisticale ffects on individual
voters can cumulate to have powerful effects on the proportion of elections won by unions." Id. at 237
(emphasis in original).
30. Kate L. Bronfenbrenner, Employer Behavior in Certification and First-ContractC ampaigns:
Implications for Labor Law Reform, in Friedman, supra note 7, at 75. In another study, data gathered
from union organizers and managers involved in more than 475 election campaigns suggested that "the
most effective hardnosed company tactic was to have supervisors campaign intensely against the union
...[ and] that companies that brought in consultants were more likely to defeat unions than other firms."
Richard B. Freeman & Morris M. Kleiner, Employee Behavior in the Face of Union OrganizingD rives,
43 INDus. & LAB. REL. REv. 351, 364 (1990).
31. UFCW President Doug Dority, UFCW Press Release, June 2, 1994, available in LEXIS,
Nexis Library, PR Newswire File. As detailed in Part II, infra, employer neutrality was the policy
mandated by the NLRB during the first five years of its existence; it was that policy which the employer
speech doctrine overturned in the 1940s.
32. "Public policy and employer opposition to unionism play important roles in union growth and
serve as leading explanations of the divergence in union growth rates among industrialized countries."
Gary N. Chaison & Joseph B. Rose, The Macrodeterminantso f Union Growth and Decline, in TiH
STATE OF THE UmONs 3, 36 (George Strauss et al. eds., 1991). For a critique of the so-called "rogue
employer thesis," see Leo Troy, The Right to Organize Meets the Market, in LIBERTY, PROPERTY, AND
Tim FurTuRE OF CoNSTrTONAL DEVELOPMmr 305-28 (Ellen F. Paul & Howard Dickman eds., 1990)
(changing markets and structural conditions mainly explain union decline) and Robert J. LaLonde &
Bernard D. Meltzer, Hard Times for Unions: Another Look at the Significance of Employer Illegalities,
58 U. Ctu. L. Rav. 953 (1991) (effect of employer lawlessness on American deunionization has been
overestimated and lacks empirical support).